2017 (8) TMI 1268

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....ker for the Indian Ordnance Factory.  They were issued show cause notice dated 4.11.2006 alleging that the packing material was not covered under the said notification and their principal manufacturer had not filed the prescribed undertaking under the said notification.  The matter was adjudicated and the demand of Rs. 14,23,569/- was  confirmed along with interest and equivalent penalty.  The appellant went in appeal.  The Commissioner (Appeals) upheld the order of the adjudicating authority.  Aggrieved from the order of the Commissioner (Appeals), the appellant have approached this Tribunal. 2. Learned Advocate for the appellants draws our attention to the show cause notice and argued that the allegation i....

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....r of the Commissioner (Appeals). 4. Heard the parties and perused the record. 5. On carefully going through the notification, which is sought to be denied to the appellant, we find that Notification No.70/92-CE excludes the following categories of packaging material: "(b) packaging material in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packing any final products; (c) packaging materials the cost of which is not included or had not been included during the precedent financial year in the assessable value of the final products under Section 4 of the Central Excise Act, 1994." 6. In the show cause notice, it is not mentioned under whi....

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....nd that M/s. Grey Iron Foundry (unit of Indian Ordnance Factories under Ministry of Defence) has actually filed an undertaking, which is on record, though it has been filed late.  7. Since the supplier of raw material (Indian Ordnance Factories) has submitted an undertaking and the notification does not expressly prescribe that the undertaking should be furnished before or at the time of clearance of goods, we feel that there is substantial compliance of the condition of the notification. In this regard, reliance is placed on the judgment of Hon'ble Supreme Court in the case of CCE Vs. Tullow India Operations Ltd. (supra), wherein the Hon'ble Apex Court has held as under: "34. In almost a similar situation, the question came up b....